Justice Alito gives inaugural lecture at Catholic University's new originalism project

Washington — U.S. Supreme Court Justice Samuel Alito Jr. on Sept. 27 gave the inaugural lecture for a new project on constitutional originalism at the Catholic University of America's law school, which is being funded by an anonymous $4.25 million gift.

Alito — who authored the majority opinion in the Dobbs v. Jackson Women's Health Organization decision, which overturned Roe v. Wade and changed the abortion landscape in the United States — is the honorary chair of the advisory council for the initiative, called the Project on Constitutional Originalism and the Catholic Intellectual Tradition. 

Alito is set to join the other Supreme Court justices in beginning a new term at the court at the beginning of October.

In both the lecture and a following question-and-answer session, Alito steered clear of controversial remarks, in contrast to his July keynote address at a religious liberty conference hosted in Rome by the University of Notre Dame, where he mocked world leaders who criticized the Dobbs decision. 

Throughout his lecture, Alito repeatedly invoked the work of Justice Antonin Scalia and Judge Robert Bork, both Catholics.

Alito specifically referred to a lecture Scalia gave for the 800th anniversary of the Dominican Order, where he criticized St. Thomas Aquinas' opinion that judges can depart from following the letter of the law in favor of equity, or justice. 

 "The talk was classic Nino, and I miss him very much," said Alito.

Alito, who generally adheres to the concept of constitutional originalism, or the legal theory that the U.S. Constitution should be interpreted according to its original, public meaning, said the role of a judge was different during Aquinas' time. 

"We should pause before jumping to the conclusion that what Aquinas or other Catholic thinkers may have said about judicial interpretation in bygone days applies in every respect to members of today's federal judiciary," said the justice.

Catholic University's Project on Constitutional Originalism and the Catholic Intellectual Tradition is being led by professor Joel Alicea, who clerked for Alito during the Supreme Court's October 2016 term.

Explaining his views on constitutional originalism during the lecture, Alito invoked a comparison between the legal theory and the authentic performance movement in classical music, more often called historically informed performance. Developed in the 20th century, that is an approach to perform works of classical music in the same manner and style of the era in which they were conceived.

Alito said he tested his commitment to originalism by listening to Johann Sebastian Bach's works on harpsichord and on piano. Alito said he had learned that harpsichord performances of Bach's works were more in line with the composer's preferences. (Some music scholars have cautioned associating Bach only with the harpsichord.)

The justice said that he administered a test of Bach's music on both piano and harpsichord to both himself and his wife. He joked that she got the wrong answer.